Child Status Protection Act

The Child Status Protection Act (CSPA) amended the
Immigration Nationality Act (INA) by changing who qualifies as a child
for purposes of immigrant. This permits certain beneficiaries (see the
glossary for a definition of the term “beneficiary”) to retain
classification as a “child,” even if he or she has reached the age of
21.

Age Out

A “child” is defined as an individual who is
unmarried and under the age of 21. Before CSPA took effect on August 6,
2002, a beneficiary who turned 21 at any time prior to receiving
permanent residence could not be considered a child for immigration
purposes. This situation is described as “aging out.” Congress
recognized that many beneficiaries were aging out because of large
backlogs and long processing times for visa petitions. CSPA is designed
to protect a beneficiary’s immigration classification as a child when he
or she ages out due to excessive processing times. CSPA can protect
“child” status for family-based immigrants, employment-based immigrants,
and some humanitarian program immigrants (refugees, asylees, VAWA).

Eligibility Criteria

• Must be the beneficiary of a pending or approved visa petition on or after August 6, 2002.

• The
beneficiary must not have had a final decision on an application for
adjustment of status or an immigrant visa before

August 6, 2002.

• The
child must “seek to acquire” permanent residence within 1 year of a
visa becoming available. USCIS interprets “seek

to acquire” as having a
Form I-824, Application for Action on an Approved Application or
Petition, filed on the child’s behalf or

the filing of a Form I-485,
Application to Register Permanent Residence or Adjust Status, or submit
Form DS-230, Application

for Immigrant Visa and Alien Registration from
the Department of State. The date of visa availability means the first
day of the

first month a visa in the appropriate category was listed as
available in the Department of State’s visa bulletin or the date the

visa petition was approved, whichever is later.

Note:
Individuals may be eligible to apply for permanent residence under CSPA
after 1 year of a visa becoming available if all of the following are
true:

• They are a beneficiary of a visa petition that was approved prior to August 6, 2002

• They
had not received a final decision on an application for permanent
residence based or immigrant visa on that visa petition

prior to August
6, 2002

• The visa became available on or after August 7, 2001

• They met all of the other eligibility requirements for CSPA (see above)

Opt-Out

CSPA
provides another type of relief referred to as the “opt-out.” This is
very limited in scope. If a permanent resident petitioner filed a Form
I-130, Petition for Alien Relative, for an unmarried son/daughter and
then the petitioner naturalized, the beneficiary can choose to remain in
the second preference classification instead of automatically
converting to a 1st preference classification. The reason
that this may be beneficial is that sometimes the waiting time for the
second preference visa is shorter than the waiting time for the first
preference visa. If this situation applies, check the visa bulletin to see if the opt-out may be helpful. If the beneficiary wants to opt-out, he or she must make a request in writing to USCIS.

Refugee and Asylee Protections

CSPA
provides protections for refugee and asylee children who aged out on or
after August 6, 2002. The child must remain unmarried to benefit from
CSPA protection.

Derivatives

The child’s age is determined
based on the time the parent’s Form I-589, Application for Asylum and
Withholding of Removal, or Form I-590, Registration for Classification
as a Refugee, was filed. After August 6, 2002, as long as the child was
unmarried and under 21 at the time either of these forms was filed, and
the child was listed on the Form I-589 or I-590, the child will remain a
“child” regardless of age and can continue adjustment of status or
consular processing on that basis.

For
Forms I-730 or I-485, Application to Register Permanent Residence and
Adjust Status, (under Section 209) that were pending on or after August
6, 2002, the child’s age is determined by using the age on the date the
principal filed Form I-589 or Form I-590, as long as the child was
unmarried and under 21 at that time and remains unmarried.